The Natural Gas Act gives FERC exclusive jurisdiction over the transportation of natural gas in interstate commerce as well as the sale in interstate commerce of natural gas for resale. 15 U.S.C. § 717(b). In the Energy Policy Act of 2005, Congress amended the Natural Gas Act to authorize FERC to obtain and disseminate information about "the availability and prices of natural gas sold at wholesale and in interstate commerce" from "any market participant." 15 U.S.C. § 717t-2(a)(2)-(3). FERC adopts Orders No. 720 and 720-A that requires non-interstate pipelines to post various types of information as to receipt and delivery points. Plaintiffs participate in the rulemaking proceeding for the Orders and oppose them because they regulate intrastate or non-jurisdictional pipelines. FERC responds to the plaintiffs' criticism by reducing the number of non-interstate pipelines that fall within the regulatory definition of a "market participant." Plaintiffs challenge die rule as being ultra vires. Because the case involves FERC's interpretation of a statute, the court applies the two-step framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Where Congress has directly spoken to the question at issue, FERC's interpretation will stand or fall based on Congress's unambiguous intent. If, however, Congress has not spoken clearly then the agency interpretation will be upheld if it is a permissible interpretation. The Fifth Circuit concludes that FERC's interpretation of the term "market participant" ignores the Natural Gas Act's clear demarcation between jurisdictional interstate pipelines and non-jurisdictional intrastate pipelines. Because FERC ignores that clear demarcation set forth by Congress, the court does not need to get past the first prong of the Chevron test. The court thus vacates the two Orders insofar as tfiey attempt to include non-jurisdictional intrastate pipelines within the disclosure requirements of the Orders.
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